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SJC-11949

MARK MARCHAND vs. DEPARTMENT OF CORRECTION & another.

1

August 11, 2016.

Correction Officer. Public Employment, Assault pay benefits.

On January 21, 2008, while working for the defendant 

Department of Correction (department), the plaintiff, Mark 

Marchand, sustained a knee injury when he intervened to protect 

a fellow employee from an assault by an inmate. As a result of 

the injury, Marchand began to receive workers' compensation 

benefits, pursuant to G. L. c. 152, as well as assault pay,

pursuant to G. L. c. 30, § 58. On November 19, 2010, after a 

hearing, the department's acting commissioner determined that 

Marchand was medically unfit for duty and separated him from 

employment as of that date. Although Marchand continued to 

receive workers' compensation benefits until July 4, 2013, the 

department stopped paying assault pay as of the date of 

Marchand's separation from employment.2

Marchand then commenced this action against the department 

and the Commonwealth's Executive Office of Health and Human 

Services, Division of Human Resources, seeking a declaration 

that he was entitled to continue receiving assault pay for so 

 

1 Executive Office of Health and Human Services, Division of 

Human Resources.

2 Marchand initially received benefits pursuant to G. L. 

c. 152, § 34 (temporary total disability), from January 21, 

2008, until July 10, 2008, and then, from July 11, 2008, until 

July 4, 2013, received benefits pursuant to G.L. c. 152, § 35 

(partial disability).
2

long as he was receiving workers' compensation benefits -- that 

is, until July 4, 2013. A judge in the Superior Court agreed. 

He allowed Marchand's cross motion for summary judgment; denied 

the defendants' motion; and ordered that judgment enter 

declaring that Marchand was entitled to assault pay retroactive 

to November 19, 2010, and continuing through July 4, 2013. The 

Appeals Court affirmed the judgment, in a memorandum and order 

issued pursuant to its rule 1:28. See Marchand v. Department of 

Correction, 87 Mass. App. Ct. 1127 (2015). We allowed the 

defendants' application for further appellate review.

The single question before us is whether a Commonwealth 

employee entitled to receive assault pay pursuant to G. L. 

c. 30, § 58, fourth par., is entitled to continue receiving such 

pay even after he separates from employment so long as he is 

entitled to workers' compensation benefits pursuant to G. L. 

c. 152, or whether his right to assault pay ceases with his 

separation from employment. The Appeals Court has previously 

interpreted the relevant provisions of G. L. c. 30, § 58, to 

mean the former. See Moog v. Commonwealth, 42 Mass. App. Ct. 

925, 927 (1997). We conclude, however, that the latter is the 

better interpretation -- in short, that assault pay is 

contingent on continued employment.

When a Commonwealth employee injured in the course of 

employment is entitled, pursuant to G. L. c. 152, to workers'

compensation benefits, G. L. c. 30, § 58, provides a means for 

the employee to continue to receive full pay while absent from 

work as a result of the injury. Generally, as set forth in 

first three paragraphs of § 58, the injured employee may use 

accrued sick leave to receive full pay.3 Pursuant to the fourth 

 

3 The first three paragraphs of G. L. c. 30, § 58, provide:

"Any employee of the commonwealth eligible to receive 

workers' compensation under [G. L. c. 152] who sustains 

injuries while in the employ of the commonwealth and who 

has sufficient sick leave credits accrued shall be granted 

leave of absence with pay for each working day he is absent 

from his duties because of such injuries until he returns 

to work or until the case has been approved by the 

industrial accident board.

"Workers' compensation for such period shall be 

refunded to the state treasurer or spending agency of the 

commonwealth. The payment by the industrial accident board 

for such period shall constitute the total refund and the 
3

paragraph of § 58, however, when the employee is injured as a 

result of an act of violence by a patient or prisoner in his 

custody, i.e., as a result of an "assault," the employee will 

receive full pay "without such absence being charged against 

available sick leave credits."4 Assault pay is, in other words, 

intended to be a substitute for the use of accrued sick leave.

There is no question, as the Appeals Court rightly noted in 

the Moog case, that assault pay and workers' compensation are 

related benefits. See Moog, 42 Mass. App. Ct. at 926. There 

also is no question that the assault pay provision in paragraph 

four of § 58 represents a "special provision for certain injured 

State employees" entitled to workers' compensation benefits 

under G. L. c. 152. See Moog, supra. As the department 

suggests,5 however, that "special provision" is just that --

special -- and is an exception to the general rules set forth in 

the section's first three paragraphs. The statute essentially 

provides an added benefit to an employee assaulted in the course 

of his or her employment, and recognizes that, in such

circumstances, the employee should not have to use sick leave to 

 

employee shall be credited with the proportionate part of 

sick leave credits represented by the workers' compensation 

paid by the industrial accident board.

"If the industrial accident board refuses to accept 

jurisdiction over the case the employee shall not be 

granted leave with pay in excess of his accumulated sick 

leave credits or vacation leave."

4 General Laws c. 30, § 58, fourth par., is the assault pay 

provision and provides:

"Notwithstanding the provisions of this section, an 

employee who, while in the performance of duty, receives 

bodily injuries resulting from acts of violence of patients 

or prisoners in his custody, and who as a result of such 

injury would be entitled to benefits under said [G. L. 

c. 152], shall be paid the difference between the weekly 

cash benefits to which he would be entitled under said 

[G. L. c. 152] and his regular salary, without such absence 

being charged against available sick leave credits, even if 

such absence may be for less than eight calendar days' 

duration."

5 For ease of reference, we refer to the defendants 

collectively as "the department."
4

maintain full pay. Sick leave, however, is a benefit provided 

only to employees, and it reasonably follows that when an 

employee separates from employment, the assault pay benefit, 

connected, as it is, to sick leave, ceases. Nothing in the 

statute requires or suggests otherwise. That the now-former 

employee who had been receiving assault pay continues to receive

workers' compensation benefits after separation from employment

is of no moment -- those benefits continue for all former 

employees who are otherwise entitled to them, regardless of 

whether the employee was entitled to assault pay.6

The department properly stopped paying Marchand assault pay 

benefits pursuant to G. L. c. 30, § 58, as of the date of his 

separation from employment. Accordingly, summary judgment for 

 

6 Our conclusion that assault pay ceases with separation 

from employment is based on our interpretation of G. L. c. 152, 

§ 58. The department also argues that continued payment of 

these benefits postemployment is problematic because it could, 

in some circumstances, result in the employee receiving more 

than one hundred per cent of his or her salary. This argument 

was not a factor in our decision. We have previously concluded,

while considering the assault pay provision of § 58 in a 

different context, that

"[i]t would not be unreasonable for the Legislature to 

provide such a comprehensive benefit for employees who are 

exposed to an occupational risk of violent injury. It 

appears that it is the Legislature's objective to ensure 

that employees injured by the violence of prisoners or 

patients do not suffer any loss as a result of such 

injury."

DaLuz v. Department of Correction, 434 Mass. 40, 49 (2001). In 

the DaLuz case, we concluded that a partially disabled 

employee's assault pay is not "reduced by the amount of the 

injured employee's earning capacity." Id. In so doing, we 

recognized that this could create an anomaly because a partially 

disabled employee might recover more than a totally disabled 

employee, or might earn more than his regular salary if he or 

she obtained other employment. Id. Although our decision here 

does not create any such anomaly, the point remains that, in 

drafting the assault pay provision, the Legislature saw fit to 

provide a "comprehensive" benefit to a certain class of 

employees -- those who sustain injuries as a result of acts of 

violence of patients or prisoners in their care -- and that 

certain anomalies may yet result.
5

the plaintiff is reversed, and the matter is remanded for entry 

of summary judgment in favor of the defendants.

So ordered.

Kirk G. Hanson, Assistant Attorney General, for the 

defendants.

Gregory F. Galvin for the plaintiff.